The Perilous Dialogue
Georgetown University Law Center
March 12, 2012
California Law Review, Vol. 97, 2009
Georgetown Public Law Research Paper No. 12-028
The master metaphor in the national security dialogue is, indeed, “security or freedom”. It dominates the counterterrorist discourse both in the United States and abroad. Transcripts from debates in Ireland’s Dáil Éireann, Turkey’s Büyük Millet Meclisi, and Australia’s Parliament are filled with reference to the need to weigh the value of liberty against the threat posed by terrorism. Perhaps nowhere is this more pronounced than in the United Kingdom, where, for decades, counterterrorist debates have turned on this framing. Owing in part, though, to different constitutional structures, what “security or freedom” means in America differs from what it means in Britain. In the United States, we tend to treat “security” and “freedom” as distinct phenomena: policy considerations set against pre-existing, political rights. Security becomes linked to decisions taken by the executive to preserve life — e.g., heightening protection against terrorist attacks by restricting entitlements specified in the Bill of Rights. Thus, Judge Richard Posner argues that in dangerous times, we must adjust constitutional rights to meet the demands of security. Professors Adrian Vermeule and Eric Posner propose “a basic tradeoff between security and liberty.” As Professor Holmes points out, the tradeoff framework is not limited to those who come down more heavily on the security side of the equation; civil libertarians also refer to the framework, arguing for the protection of rights in the face of security demands. In the United Kingdom, in contrast, scholars and policy makers tend to consider security versus freedom as a case of competing rights: the right to life or the right to freedom from fear set against the right to move freely. As Prime Minister Tony Blair announced on 9/11, the exercise of state power would be necessary to protect “the basic civil liberty that people have to go about their business free form [sic] terror.” This framing — competing rights in tension — reflects Britain’s constitutional structure. Measures introduced by Parliament do not have to conform to a written constitution. While some documents, such as the 1215 Magna Carta, or the 1689 Bill of Rights, carry special significance, they are part of a broader system that encompasses legal and non-legal rules. The multiplicity and fluidity of rights, and the constant effort to balance them, reflect Britain’s relationship with Europe, where the European Convention on Human Rights (incorporated into British domestic law through the 1998 Human Rights Act) and European Communities law weave together to create a complex system of rights and rules protecting them. Despite the manner in which the United States and United Kingdom interpret “security or freedom,” reflective of their respective constitutional differences, in both countries the dichotomy between rights and security dominates the counterterrorist discourse. And in both regions, because the dichotomy ignores in its narrow terms of reference the far-reaching effects of counterterrorism, it stifles the debate. The “hydraulic” assumption inherent in the “security or freedom” framework overlooks the possibility that rules — indeed, the rule of law itself — provide security. There are multiple types of securities and liberties at stake. And the framework distorts the “real tradeoffs” that are being made, such as the risks inevitably entailed in the allocation of limited resources. Most importantly, “security or freedom” fails to capture the single most important characteristic of counterterrorist law: increased executive power that shifts the balance of power between the branches of government.
This article suggests that at each point where the legislature would be expected to push back against the executive’s power — at the introduction of measures, at the renewal of temporary provisions, and in the exercise of oversight — its ability to do so is limited. The judiciary’s role is similarly restricted: constitutional structure and cultural norms narrow the courts’ ability to check the executive at anything but the margins. With the long-term political and economic effects of this expanded executive strength masked by the immediacy of the “security or freedom” dichotomy, the true costs of anti-terror legislation in the United States and in the United Kingdom have gone uncalculated. Over the past four decades, both countries have seen the relationship between governmental branches altered, individual rights narrowed, and the relationship of the citizens to the state changed. Counterterrorist law has alienated important domestic and international communities, created bureaucratic inefficiencies, and interrupted commercial activity. As these two countries set global counterterrorist norms through important multilateral and bilateral organizations, such as the United Nations (“UN”), the UN Security Council, the G7/G8, and the Financial Action Task Force, the risk increases that these detrimental effects will be transferred to other constitutional democracies. American and British provisions, moreover, have evolved outside the specter of terrorist groups actually using weapons of mass destruction to inflict mass casualties. The proliferation of weapons of mass destruction — and I would add biological weapons to Professor Holmes’s concern about fissile material — together with a growing willingness on the part of extremists to sacrifice themselves, may drive the two countries to take increasingly severe measures. Such provisions could lead to a shift in the basic constitutional structure of both countries.
Number of Pages in PDF File: 37
Keywords: National Security, Constitutional Law, Terrorism, Executive Power, Counterterrorist Law, Civil Liberties, Comparative Law
JEL Classification: K1, K2, K3, H56Accepted Paper Series
Date posted: March 14, 2012
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